United States District Court, S.D. Indiana, Terre Haute Division
GEORGE P. MINTER, Petitioner,
SUPERINTENDENT Wabash Valley Correctional Facility, Respondent.
ENTRY DISCUSSING PETITION FOR A WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
JANE MAGNUS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT
George P. Minter (“Mr. Minter”) is an Indiana
state prisoner currently incarcerated at Wabash Valley
Correctional Facility. For the reasons explained in this
Entry, Mr. Minter's petition for a writ of habeas corpus
must be denied and the action dismissed for
lack of jurisdiction. In addition, the Court finds that a
certificate of appealability should not issue.
Petition for Writ of Habeas Corpus
20, 1994, after a jury trial, Mr. Minter was sentenced to
fifty years for attempted murder, three years for theft, with
an additional thirty years habitual offender enhancement. On
July 5, 1995, the Indiana Supreme Court affirmed the
petitioner's convictions on direct appeal. See Minter
v. State, 653 N.E.2d 1382, 1382 (Ind. 1995). On
September 10, 1996, the petitioner filed a petition for
post-conviction relief (“PCR”) in state court
which was denied on April 5, 1999. Dkts. 9-1 at 8; 10-12. The
Indiana Court of Appeals affirmed the PCR court on March 21,
2000, and transfer was denied by the Indiana Supreme Court on
May 24, 2000. Dkts. 9-2; 9-3.
August 31, 2000, the petitioner's first habeas corpus
petition for this conviction was filed with the Clerk of this
Court, under cause No. TH00-C-0243-M/F. Dkt. 9-5. On March 7,
2001, this Court entered judgment dismissing the petition
with prejudice. Id. The petitioner sought a
certificate of appealability of this ruling, which the United
States Court of Appeals for the Seventh Circuit denied.
petitioner has been unsuccessful in seeking leave to file
successive petitions for post-conviction relief with the
Indiana Court of Appeals, with the most recent denial
occurring on April 28, 2017. Dkt. 9-4. On June 5, 2017 Mr.
Minter, proceeding pro se, filed the instant
petition for a writ of habeas corpus. Respondent filed its
return to the order to show cause on August 3, 2017.
petition, Mr. Minter raises claims of ineffective assistance
of counsel and fundamental error. The crux of his claims are
that, because the police report in his case discussed
recklessness with a deadly weapon, rather than attempted
murder, he should not have been charged with attempted
murder. Dkt. 1.
response to the Court's show cause order, the respondent
argues that the petition must be denied for lack of
jurisdiction because Mr. Minter has not received permission
from the Seventh Circuit Court of Appeals to file a
successive habeas petition. Dkt. 9.
Court lacks jurisdiction over Mr. Minter's petition, as
he has already challenged his conviction via a prior federal
habeas petition. When there has already been a decision on
the merits in a federal habeas action, to obtain another
round of federal collateral review a petitioner requires
permission from the Court of Appeals under 28 U.S.C. §
2244(b). See Potts v. United States, 210 F.3d 770
(7th Cir. 2000). This statute, § 2244(b)(3),
“creates a ‘gatekeeping' mechanism for the
consideration of second or successive [habeas] applications
in the district court.” Felker v. Turpin, 518
U.S. 651, 657 (1996). It “‘is an allocation of
subject-matter jurisdiction to the court of
appeals.'” In re Page, 170 F.3d 659, 661
(7th Cir. 1999) (quoting Nunez v. United States, 96
F.3d 990, 991 (7th Cir. 1996)), opinion supplemented on
denial of rehearing en banc, 179 F.3d 1024 (7th Cir.
1999). Therefore, “[a] district court must dismiss a
second or successive petition . . . unless the court of
appeals has given approval for the filing.”
Id. Accordingly, this Court lacks jurisdiction over
Mr. Minter's petition and it is therefore dismissed.
corpus has its own peculiar set of hurdles a petitioner must
clear before his claim is properly presented to the district
court.” Keeney v. Tamayo-Reyes504 U.S. 1, 14
(1992) (O'Connor, J., dissenting) (internal citations
omitted). The petitioner has encountered the hurdle produced
by the limitation on filing second or successive habeas
petitions without ...